The drafting lawyer.
The attesting witnesses.
Time and again the case law suggests to us that these are three of your most important witnesses in defending (or pursuing) a lack of testamentary capacity or undue influence case. Yet, we sometimes don’t put a lot of thought into who will be our attesting witnesses or notary and how they might come across as witnesses at trial.
Reva Viola Amerson filed a caveat challenging the validity of William Jackson Dunaway’s will. Amerson maintained that the will was invalid due to lack of testamentary capacity and undue influence. After a bench trial, the probate court found the will to be valid.
In reviewing the probate court’s decision, the Georgia Supreme Court homed in on the testimony of the drafting attorney, one of the witnesses to the will, and the attorney who notarized the will.
With respect to the testamentary capacity claim, their testimony supported the conclusion that, at the time the will was executed, Dunaway understood the consequences of his actions in executing the will, despite the fact he suffered from some level of dementia. Specifically, the witnesses affirmed that Dunaway:
- understood he was making a will;
- knew that his will would dispose of his goat farm and other property after his death; and
- intended that his only sister, who lived on the property and with whom he had a close relationship, would inherit the property.
With respect to the undue influence claim, the witnesses to the execution of the will testified that Dunaway executed it freely and voluntarily.
If you have concerns that the testator’s estate plan will be challenged, spending a little extra time choosing the right witnesses and notary on the front end may help protect the testator’s intent on the back end when a caveat gets filed.